Citation Nr: 1325196 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 07-27 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from November 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, denied reopening the claim for service connection for a back disorder. The RO in Providence, Rhode Island now has jurisdiction of this claim and has certified it to the Board for appellate review. The Veteran testified in support of this claim during hearings held at the RO in April 2007, before a Decision Review Officer, and in May 2011, before the undersigned Veterans Law Judge. In September 2011, the Board reopened this claim and remanded it to the RO via the Appeals Management Center in Washington, DC. The Board also remanded claims for service connection for residuals of a head injury, claimed as dizziness, a psychiatric disorder, claimed as an anxiety disorder, and a missing toenail on the left foot. By rating decision dated January 2013, however, the RO granted the latter three claims. They are, therefore, no longer before the Board for appellate review. FINDING OF FACT A back disorder is not related to the Veteran's active service. CONCLUSION OF LAW A back disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The RO provided the Veteran VCAA notice on his claim by way of letters dated in March 2006, April 2006, May 2009, October 2011, November 2011 and July 2012. The RO most recently readjudicated this claim in a January 2013 SSOC, curing any timing deficit associated with these notice letters. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The content of these letters reflects compliance with the pertinent statutory and regulatory provisions and case law. Therein, the RO acknowledged the Veteran's claim, notified him of the evidence needed to substantiate it, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claim pursuant to this duty. The RO also provided him all necessary information on disability ratings and effective dates in the event service connection is granted. As well, in these letters and a Memorandum dated September 2012, the RO identified the evidence it had received in support of the Veteran's claim, the evidence it had requested, but not yet received, and the evidence that was unavailable and could not be obtained. It specifically indicated that the Social Security Administration (SSA) had responded that the Veteran's medical records had been destroyed and that there were no treatment record from Providence VA Medical Center dated before December 1991 (a fact to which the Veteran agreed, claiming he never went there prior to that time), between March 1993 and May 1999 and between December 2001 and August 2006. The RO identified the evidence that VA is responsible for obtaining and indicated it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the sources of it. The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence. Typically, VA provides claimants further notice during hearings. As noted above, the Veteran testified at a Board hearing before the undersigned in May 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), a VLJ who chairs a hearing must satisfy two duties: (1) fully explaining the issue; and (2) suggesting the submission of evidence that may have been overlooked. Importantly, the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. The Court further held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. Id. at 498-99. In this case, the VLJ did not satisfy these duties fully, but any decision to proceed in adjudicating this claim is harmless, not prejudicial to the Veteran or affecting the essential fairness of the adjudication of this claim. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993). First, the outstanding issue here is whether the Veteran's back disorder was incurred in or aggravated by active service. Although the undersigned did not explicitly identify this issues for the Veteran, the Veteran had an opportunity to present testimony in support of this claim facilitated by questioning from the undersigned. Moreover, during the hearing, the representative elicited testimony regarding the Veteran's in-service back injury and current back disability such that it was apparent the Veteran understood the nature of his claim. Second, following the hearing, in a remand issued in September 2011, the Board identified evidence that had been overlooked and remanded to obtain that evidence. Third, VA has otherwise developed this claim, including obtaining records on the Veteran's behalf and providing him a VA examination. In addition, the Veteran has submitted a medical opinion and written statements in support of this claim and presented testimony at two hearings. There is no indication of any outstanding, available evidence that may have been overlooked. See id. at 499. Given the development of this claim and the evidence and oral and written argument submitted by the Veteran, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled. Id. at 498-99. Therefore, the Veteran's right to a Board hearing has been satisfied and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2). See id.; see also Sanders, 556 U.S. at 407, 410. Neither the Veteran nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements of Bryant. B. Duty to Assist VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by affording him a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). As indicated above, in this case, the RO obtained all available evidence that the Veteran identified as being pertinent to this claim. As well, it afforded the Veteran a VA examination, during which an examiner addressed the etiology of the Veteran's back disorder. The RO complied with the Board's September 2011 remand in that the available VA records were obtained, as well as private records from Day Kimball Hospital. An effort was also made to obtain the Veteran's Social Security records; however, it was reported that these records were not available because they had been destroyed. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when there is this challenge, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran here does not claim that the examination report is inadequate or that there are other outstanding records that need to be obtained in support of this claim. Given the RO's actions in this case, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). II. Analysis The Veteran seeks a grant of service connection for residuals of a back injury sustained in 1967. According to written statements he and his representative submitted during the course of this appeal and his hearing testimony, presented in April 2007 and May 2011, while training at Fort Gordon in Georgia in March 1967, the Veteran was hanging wires on a telephone pole when he fell off, landing on his back in excess of 20 feet onto the ground below. This injury caused soreness in his back and allegedly necessitated a week of bed rest, but over the years, including during the remainder of his period in the service, his back pain worsened. The Veteran does not recall if he saw doctors for his back during the remainder of his time on active duty, but on discharge examination, an examiner told him that he would not be discharged if he had medical problems; consequently, he said nothing and signed a form so he would be discharged. The Veteran contends that he sought back treatment again in the 1970s at VA's Medical Center in Rhode Island, but was turned away, and eventually went to Dr. W., a private doctor. He further contends that, since then, he has received treatment, including two surgeries in 1989 or 1990, for his back problems. The Veteran points out that he has submitted a favorable medical opinion in support of his claim from Dr. W., his treating physician and, given that physician's intimate knowledge of his health status, the opinion should be found probative. The Board acknowledges the Veteran's contentions and the medical opinion he submitted in support of this claim, but considering these contentions and opinion in conjunction with all of the other evidence of record, discussed below, finds that the preponderance of the evidence is against a grant of service connection for a back disability. Although the Veteran injured his back during service, residuals of that injury resolved and he developed the initial manifestations of his current back disability suddenly, in 1985, close to two decades after the in-service injury. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When certain chronic diseases are at issue, such as arthritis or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology. Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology. Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be presumed for certain medical conditions such as arthritis if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection in combat cases but rather ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which a current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Post-service medical documents, including VA and private treatment reports dated since the Veteran filed his claim, an April 2007 letter from Dr. W., and a report of VA spine examination conducted in October 2007, confirm that the Veteran currently has a back disorder, variously diagnosed, including as degenerative disc disease and lumbago. The question is therefore whether this disability is related to the Veteran's active service. The Veteran served on active duty from November 1966 to October 1969. His service treatment records reflect that, in March 1967, he sought treatment for severe neck pain (he reported that it included his back) secondary to a fall that occurred the previous day. A description of the fall, including that he landed in excess of 20 feet from where he was hanging wire, is not of record. The examiner ordered x-rays of the neck only and limited his clinical evaluation to the Veteran's neck. He did not mention the Veteran's back and indicated that a full examination could not be completed because there was a lot of CNS (central nervous system) overlay. He prescribed pain medication and ordered a recheck in 2 or 3 days. In May 1968, the Veteran underwent an evaluation for a different medical complaint. The examiner noted no costovertebral angle tenderness or spinal tenderness. Similarly, during a separation examination conducted in August 1969, the Veteran reported that he had not had recurrent back pain and the examiner noted a normal clinical evaluation of the spine. According to the post-service medical documents of record, in July 1987, the Veteran presented to a neurosurgeon with a complaint of back and right leg pain. He indicated that, in 1985, he experienced a sudden onset of such pain, which he decided to treat conservatively. He noted that, in February 1987, he slipped and fell at work, injuring his back. He treated this injury with two to three weeks of bed rest, after which the pain resolved considerably. He further indicated that, two to three months prior to the visit, he had begun experiencing right leg pain in addition to his back pain. He reported a past medical history that did not include the in-service fall and back injury. The neurosurgeon recommended conservative treatment, but in October 1987, after testing showed a large herniated disc, the Veteran underwent surgery - a right L4-5 hemilaminectomy plus discectomy. In July 1989, the Veteran reported that he still had back pain and also had left leg pain. These symptoms necessitated a second laminectomy in 1990. That year or the next, SSA found the Veteran unable to work based on his back disability. Since 1992, the Veteran has continued to receive back treatment. In May 1992, he indicated that he had fallen in the Army in 1966 and that his back problems had "acquiesced" until 1985. He also indicated that he had been seen at a VA facility during that time period and undergone x-rays and an examination, but there was nothing major. A physician noted that the Veteran was at the endpoint orthopedically and referred him for pain management. VA treatment records dated from 1999 to 2001 include problem lists relating the Veteran's back pain to a 1996 fall. Two medical professionals have addressed the etiology of the Veteran's back disorder. In April 2007, Dr. W. wrote that he had reviewed the service medical records and, in his opinion, the Veteran's back condition is as likely as not related to the fall he had on active duty. In October 2007, during a VA spine disability, a VA examiner conducted a comprehensive review of the claims file, diagnosed the Veteran with degenerative disc disease of the lumbar spine with a radicular component, and concluded that there is less than a 50 percent probability that the current low back disability is related to the Veteran's in-service fall. He based this conclusion on the following findings: (1) There are no documents in the service treatment records pertaining to a back condition following the initial report of back pain; (2) This is so despite there being reports of several evaluations, during which the Veteran had an opportunity to identify significant symptoms or physical abnormalities; (3) The separation examination report documents a normal examination and no mention of a back condition; (4) A multitude of factors, including repetitive mechanical stresses, micro or macro trauma, changes in metabolism, cellular nutrition and biochemical composition lead to alterations in the integrity of intervertebral discs; (5) Although the Veteran may have injured his back during service, that injury was not noted as being sufficiently significant to result in abnormal physical examination findings and symptom findings and complaints during multiple evaluations; (6) It is also possible that, subsequent to active service, the Veteran's spine was exposed to numerous mechanical stresses, micro or macro trauma, etc..., that contributed to his lumbar spine condition; (7) Medical documents of record reveal a sudden onset of back pain in 1985 shown on CAT scan to involve a disc abnormality, increased back pain in February 1987 after a slip and fall injury at work, and August 1989 magnetic resonance imaging and a myelogram of a herniated disc and compression of the nerve root; (8) Medical literature establishes that vertebral disc disease is the result of multiple factors over time, rarely developing in teenagers despite an abundance of physical activity, and occurring with the greatest incidence between the ages of 30 and 50; and (9) Such disease is generally the result of an accumulation of physical and nutritional stresses to the vertebrae and discs, including trauma, vibration, smoking, aging and inactivity. The Board must assess the credibility and weight to be attached to a medical opinion. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may favor one over another provided each opinion includes adequate statements of reasons or bases. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, Dr. W's opinion includes no reasons, bases, or rationale. The Board does not, therefore, accord it any weight. Rather, it finds it not probative. On the other hand, the VA examiner's opinion contained a detailed rationale, as well as a detailed and accurate discussion of the Veteran's history. Therefore, it is found to be probative and to carry great weight. The Veteran's assertions relating his current back disability to his in-service back injury represent the only other evidence of record satisfying the necessary nexus in this case. The Veteran is competent to describe his in-service accident and any lay-observable back symptoms he has experienced over the years, but because he has no medical expertise, he is not competent to relate his low back disability to service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F. 3d at 1377. In any event, even if he were, in 1987, after suffering a post-service work-related accident, he related his symptoms to that accident, not the accident that occurred during service. His recent assertions, made for the purpose of receiving VA compensation benefits, contradict those made in 1987 and are therefore of questionably credible. The Board also finds that the Veteran's statements as to continuing back symptoms since service not to be credible, in light of the post-service medical documents of record. In particular, in July 1987 the Veteran indicated that in 1985 he experienced a "sudden onset" of back pain. He made no mention of an in-service injury or continuity of symptoms since service. Rather, his statement suggests that his back symptoms started in 1985. In sum, the Board finds that the competent and credible evidence of record shows that the Veteran's current back disorder is not related to service. The evidence in this case is not in relative equipoise. The benefit-of-the-doubt rule is thus not applicable. Therefore, the claim for service connection for a back disorder is denied. ORDER Service connection for a back disorder is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs